ML15104A384

Transcript of Entergy Nuclear Operations, Vermont Yankee Nuclear Power Station, April 8, 2015, Pages 1-35

ML15104A384
Person / Time
Site:	Vermont Yankee
Issue date:	04/08/2015
From:	Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-271-LA-2, ASLBP 15-937-02-LA-BD01, NRC-1496, RAS 27510
Download: ML15104A384 (36)

Text

Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSIONTitle:Entergy Nuclear Operations Vermont Yankee Nuclear Power StationDocket Number:50-271-LA-2ASLBP Number:15-937-02-LA-BD01 Location:(teleconference)

Date:Wednesday, April 8, 2015Work Order No.:NRC-1496Pages 1-35 NEAL R. GROSS AND CO., INC.

Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.

Washington, D.C. 20005 (202) 234-4433 1 UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION 2+ + + + +3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4+ + + + +5 HEARING 6-------------------------x 7 In the Matter of:  : Docket No.

8 ENTERGY NUCLEAR VERMONT  : 50-271-LA-2 9 YANKEE, LLC, AND ENTERGY : ASLBP No.

10 NUCLEAR OPERATIONS, INC. : 15-937-02-LA-BD01 11 (Vermont Yankee Nuclear  :

12 Power Station)  :

13-------------------------x 14 Wednesday, April 8, 2015 15 16 Teleconference 17 18 BEFORE: 19 PAUL S. RYERSON, Chair 20 DR. MICHAEL F. KENNEDY, Administrative Judge 21 DR. RICHARD E. WARDWELL, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 2 APPEARANCES:

1 On Behalf of Entergy 2 Raphael Kuyler, Esq.

3 Paul Bessette, Esq.

4of:Morgan Lewis & Bockius, LLP 5 1111 Pennsylvania Ave 6 Washington, DC 20004 7 (202)739-5146 8 9 Susan Raimo, Esq.

10of:Entergy Services, Inc.

11 101 Constitution Ave., NW 12 Washington, DC 20001 13 (202)530-7300 14 15 On Behalf of the Nuclear Regulatory Commission 16 Mitzi Young, Esq.

17 Beth Mizuno, Esq.

18 Jeremy Wachutka, Esq.

19 Daniel Straus, Esq.

20of:U.S. Nuclear Regulatory Commission 21 Office of the General Counsel 22 Mail Stop O-15D21 23 Washington, DC 20555-0001 24 301-415-4126 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 3 On Behalf of the State of Vermont 1 Aaron Kisicki, Esq.

2 Vermont Department of Public Service 3 112 State Street - Drawer 20 4 Montpelier, VT 05620 5 (802)828-3785 6 7 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 4 P R O C E E D I N G S 1 9:00 a.m.2CHAIR RYERSON: Good morning everyone and 3 welcome. We're here on the matter of an application 4by Entergy Nuclear Vermont Yankee, LLC and Entergy 5Nuclear Operations, Inc. to amend the license for 6 Vermont Yankee Nuclear Power Station.

7I'm Judge Ryerson. Excuse me one second.

8MR. PEPPERL: I think we need to join the 9 conference to get the listeners in as well.

10 Is the conference leader still on the 11 line?12 OPERATOR: Yes, I'm here.

13 MR. PEPPERL: Have we joined in with the 14 listeners?

15OPERATOR: I will join you now, one moment 16 please.17MR. PEPPERL: Okay, great, thank you.

18 Sorry.19 OPERATOR: All right, you may proceed.

20CHAIR RYERSON: Okay, so we'll start over.

21 Again, I'm Judge Ryerson. We're here on 22 the matter of an application by Entergy Nuclear 23 Vermont Yankee, LLC and Entergy Nuclear Operations, 24 Incorporated to amend the license for Vermont Yankee 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 5 Nuclear Power Station.

1I'm trained as a lawyer. I chair the 2 Atomic Safety and Licensing Board that the NRC has 3 assigned this particular proceeding.

4With me is Judge Kennedy. Dr. Kennedy is 5 a nuclear engineer and our third Board Member who is 6 also here with us is Dr. Wardwell who is trained as a 7 civil engineer and has a particular focus on 8 environmental geoscience.

9 Today's proceeding concerns a petition by 10 the State of Vermont for a hearing on Entergy's 11 License Amendment Application and to intervene. And 12 I should say that, in addition to being recorded by 13 the Court Reporter today, our telephone conference is 14 being made available in a listen only telephone mode 15 to members of the public and the press.

16 Before we take the appearances of counsel, 17 I'd like to summarize how the Board intends to proceed 18 this morning.

19 Our purpose is to hear arguments on 20 whether Vermont has submitted an admissible contention 21 so as to justify a hearing on Entergy's application.

22 There doesn't appear to be any questions, but that the 23 State of Vermont has standing to petition for a 24hearing. But the question is whether Vermont has put 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 6 forward an admissible contention appropriate for a 1 hearing before the Board under the NRC's rules.

2All of the Board Members, I can assure 3 you, have read the parties' legal memorandum, we've 4studied them. We understand your arguments and, 5 therefore, I'm hopeful that today's call will be a 6 relatively short one. We really want to focus today 7 on questions the Board Members have.

8 And in particular, as we indicated in the 9 Scheduling Order for this call, we expect that most of 10 our questions will focus on whether Vermont's 11 contention number two si admissible regardless of 12 whether the Commission reconsiders Entergy's request 13 for an exemption from certain NRC regulations.

14 The Commission has already approved that 15 exemption request once and the Commission has before 16 it the State of Vermont's request for reconsideration 17 of that approval.

18 So, our argument -- the arguments that 19 we're most interested in today, frankly, are the 20 arguments that are, I think, are advanced at page 21seven of Vermont's reply primarily. And that is, even 22 if the Commission were to reaffirm the granting of an 23exemption in full, is it still an admissible 24 contention here?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 7 Generally, I think when any Board Member 1 asks a question, we will try to direct it to a 2 particular party, but we're going to be fairly 3informal here. If someone feels a need to comment on 4a question and they haven't been specifically asked 5for an answer, just let us know at the earliest 6 convenience or appropriate moment.

7 If would be helpful, of course, and 8 especially helpful to the Court Reporter, if everyone 9 remembers to identify themselves before they speak.

10 I am hopeful, I think the Board is hopeful 11that we will finish within an hour or so. If it looks 12 like it might go much longer than that, we'll consider 13 taking a short break.

14 Any comments from the other Judges before 15 we take the formal appearances of counsel?

16 Judge Kennedy?

17 JUDGE KENNEDY: Nothing.

18 CHAIR RYERSON: Judge Wardwell?

19 JUDGE WARDWELL: I have nothing.

20 CHAIR RYERSON: Okay. Well, let's begin 21 then.22 Let's start first with the State of 23Vermont. Who will be the primary speaker at least for 24 the State of Vermont today?

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 8MR. KISICKI: Good morning, Your Honor.

1My name is Aaron Kisicki and I represent the State of 2 Vermont.3CHAIR RYERSON: Okay, welcome, Mr.

4 Kisicki.5 MR. KISICKI: Thank you.

6CHAIR RYERSON: And for Entergy, is the 7 Mr. Kuyler?

8MR. KUYLER: Yes, Your Honor, this is Ray 9Kuyler for Entergy. Also in the room with me is my 10 colleague, Paul Bessette and Susan Raimo, Senior 11 Counsel at Entergy.

12CHAIR RYERSON: Okay, and welcome to you.

13 And the NRC staff?

14MS. MIZUNO: For the NRC staff, this is 15Beth Mizuno. The primary speaker today will be Mitzi 16 Young. Accompanying us are Daniel Straus and Jeremy 17Wachutka. We're also joined by a number of members of 18 the staff.

19 And, if I could, since we're doing notices 20 of appearance right now, or we're doing appearances, 21I'd like to apologize, it was last night that we 22 discovered that, through inadvertent, we had failed to 23 file notices of appearances in this particular Vermont 24Yankee proceeding. And we have remedied that now. My 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 9 apologies.

1CHAR RYERSON: We noticed a number of 2 filings early this morning. Thank you.

3 And welcome to all of you, as well, to the 4 call.5All right. Well, let's begin with 6 essentially the question we posed in the Order setting 7up the call. We're not asking for formal opening 8 arguments, but essentially, this will be a chance to 9 say what you would like about that issue.

10 So, specifically, the question is, let's 11 assume for purposes of argument, that the Commission, 12again, affirms the approval of the exemptions. And I 13 know the exemptions haven't technically issued yet, 14 but they Commission has approved them conceptually 15 once, I guess is an accurate way to describe where we 16 are.17 There's a pending petition by the State in 18 front of the Commission and if the Commission simply 19says we were right the first time or dismisses the 20 petition on procedural grounds or whatever, let's 21 assume that those exemptions are, in fact, allowed by 22 the NRC.23 Is the contention still admissible? And 24 that's an argument that the State makes, as I said, I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 10 think on page seven, in particular, of your reply.

1 So, I will turn it to you, Mr. Kisicki.

2 Do you want to elaborate on that argument?

3 MR. KISICKI: Certainly, Your Honor.

4 And first and foremost, before I begin, I 5 also would like to apologize on behalf of the State 6 for some of its procedural missteps that we've made in 7 this proceeding so far.

8 In particular, obtaining certain 9certifications regarding our Motion to Stay. We will 10 endeavor to do a better job going forward.

11CHAIR RYERSON: No need to apologize, but 12 that is, in my view, an important requirement of the 13rules. If the parties can work things out, often they 14 can't, but if they can work things out, that makes 15 life easier for everyone including, I think, 16 ultimately the parties.

17But, in any event, yes, thank you for 18 mentioning that and please continue.

19 MR. KISICKI: Thank you.

20 In response to your question, the answer 21 is yes, contention two standing alone, I think, is 22 admissible even in the event that the Commission were 23 to reaffirm its approval of the NRC's staff 24 recommendation to the exemption request.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 11 As outlined on page seven of our reply, we 1 have expert -- we have standings from our experts that 2 the analysis used to justify the LAR is deficient on 3 its face. It doesn't analyze credible beyond design 4 basis threats to include a possible action, use of 5 accelerants and fuel transfer accidents.

6 That alone, I think it would be left to 7justify at a hearing on it was viewed under the 8 requirements of 50.54(q)(4).

9 But beyond that, the question itself goes 10to a larger issue which needs to be addressed with 11 this contention two can't be properly evaluated at 12 this time because we don't know what the Commission is 13 going to rule. It's speculative at best to say that 14 the Commission will reaffirm its initial ruling.

15 One, the Commission may wind up siding 16with the State and deciding that there is a hearing 17right that's been triggered with respect to the 18 exemption request which very well may cause an 19 amendment of contention two that would change the 20 dynamics of the position with respect to contention 21 two.22 Or the Commission may instruct the NRC 23 staff to treat contention two in a particular way.

24 We simply don't know at this time and I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12 think that makes it very difficult for any party here 1 to say with any certainty whether or not contention 2two isn't admissible. On its face right now it is and 3 any change to contention two that might be triggered 4 by a Commission ruling pursuant to the Motion for 5 Reconsideration could fundamentally change the 6 dynamics of the entire contention from the State's 7 perspective.

8 CHAIR RYERSON: Yes, Mr. Kisicki, let me 9 sort of run through the scenarios at least as I see 10 them and see whether you disagree.

11 It is possible that the Commission will 12 simply reject your Petition for Reconsideration in its 13 entirety on procedural grounds, on some other grounds, 14 we don't know, but simply reject it.

15 And if that's the case, then the question 16 that the Board has posed for you would seem to be 17 highly relevant to me and that is, suppose the 18Commission does that? Is there still, in those 19 circumstances, an admissible contention two?

20 And that's what we would appreciate your 21 addressing in a little more detail than on page seven 22 of the reply.

23 Now, if the Commission does something else 24 which is a much broader category, it is certainly 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13 possible that the Commission has been known to do 1 this, but this Commission might explain how it would 2 expect the Board to proceed in these circumstances.

3 I think that's very possible or the Board would have 4 to figure out how it's supposed to proceed or you 5 might want to amend or whatever.

6 But, I mean don't those seem to you to be 7the options? If the Commission simply rejects your 8 Petition for Reconsideration and, in effect, has twice 9 approved the exemption that we're talking about or 10 exemptions, then isn't the critical question whether 11 you have asserted an admissible contention, even in 12 those circumstances?

13 And if the Commission does something else, 14 well, I'm sure that we have to probably kind of play 15 it by ear because we'll see what the Commission says 16 about that if the Commission does something else.

17 I mean do you disagree with that analysis 18 of the likely scenarios that are in front of us?

19MR. KISICKI: I agree with you, Your 20 Honor, that in the event that if the Commission were 21 to reject our Motion for Reconsideration completely 22 out of hand in its entirety, we would be left with the 23 core question of whether or not contention two is 24 admissible as is today.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14 CHAIR RYERSON: Right.

1MR. KISICKI: With that being said, I 2 think, again, the answer is yes, it certainly is.

3 Again, it goes to another procedurally 4 we're up in an upward position and we've been put in 5 that position because of Entergy's actions where they 6 failed to get the predicate exemption request prior to 7 filing the LAR.

8 Right now, what is undisputed by any party 9 is, if the Board were to grant the LAR today, it would 10-- the LAR would be essentially illegal. It would be 11 in violation - it violates the regulations as they are 12put out today. There is no exemptions that's been 13 granted at this point.

14 So with that said, under the requirements 15 at 50.54(q)(4), Entergy is required to show that any 16 reduction in emergency plans and emergency plan 17 safety, they have to identify the basis for concluding 18that the revised emergency plan would meet the 19 requirements of 50.47(b) and Appendix E.

20 In this situation, the State's contention 21 points out that because the underlying safety analysis 22 fails to identify and analyze credible beyond design 23 basis threats including hostile actions, use of 24 accelerants and, in particular, fuel transfer 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15 accidents.

1 That satisfies all the admissibility 2 requirements justifying a hearing on this issue alone.

3CHAIR RYERSON: And that, again, is 4 because what NRC regulatory requirement mandates that?

5 MR. KISICKI: 50.54(q)(4).

6JUDGE WARDWELL: Mr. Kisicki, this is 7 Judge Wardwell.

8 Do you know if any of these particular 9 scenarios were evaluated as part of the exemption 10 request?11MR. KISICKI: My understanding is with 12 respect -- there was no analysis of a situation where 13 accelerants were used and particular hostile actions 14 including I think what our experts identified was a 15 lack of analysis of say and airplane strike.

16 I apologize, I'm not sure of the answer 17with respect to fuel transfer accidents. But I think 18 the answer to that is also no, I don't think was 19 analyzed as part of the exemption request.

20 I'm more than happy to check on that and 21 get back to you with that question.

22JUDGE WARDWELL: We'll let you know 23 whether we need that or not based on responses we 24 receive here from the other parties.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 16 MR. KISICKI: Thank you.

1CHAIR RYERSON: Do you have anything more 2 to add in regards to whether contention two would be 3 admissible if the exemptions were granted?

4MR. KISICKI: Again, I think on its face, 5 the State has put forth a contention that identified 6 with specificity deficiencies in their analysis that 7 is support by expert affidavits not only from the 8 Department of Public Affairs and State Nuclear became 9 aware but as well as representatives from the State's 10 Division of Emergency Management and Homeland Security 11 and the State Department of Health.

12 And that analysis and those affidavits 13 satisfy the admissibility requirements justified in 14 here.15CHAIR RYERSON: Mr. Kisicki, this is Judge 16 Ryerson.17 The affidavits that you talk about are the 18 statements that were submitted? Are they sworn 19 affidavits or subject to penalty of perjury or are 20 they simply statements?

21 MR. KISICKI: They are sworn as far as I 22can tell. We did not include an affidavit to that 23 effect but we can supply the Board with that if they 24 would like.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17CHAIR RYERSON: Okay. It's not that I 1 missed something, there is no sworn declaration with 2 the statement at this point.

3 MR. KISICKI: No, there is not.

4CHAIR RYERSON: But you are asserting that 5you believe that these individuals would, in fact, 6 sign an affidavit incorporating what they wrote?

7 MR. KISICKI: Yes.

8JUDGE WARDWELL: Under the basis of our 9 arguments -- this is Judge Wardwell again -- the line 10 of questioning that we're doing now, that is assuming 11 that the exemptions are maintained and as we move 12forward, do you agree that challenging an exemption 13 that's been approved by the Commission is 14 impermissible similar to any other Commission ruling?

15MR. KISICKI: I think in this instance, 16 there is a unique circumstance which may override that 17 general rule.

18 Here, as outlined in our reply and in our 19 Motion for Reconsideration, the NRC has found that a 20 hearing right is triggered with respect to exemption 21 requests when the exemption request is related to the 22 LAR.23 Here, Entergy is very clear on the face of 24 its LAR that the LAR is predicated exclusively on the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 18 granting of the exemption request.

1 And in the Private Fuel Storage case which 2 is cited in the Motion for Reconsideration and the 3 State's reply, NRC was clear that the exemption can't 4 remove quote, a matter germane to a licensing 5 proceeding in consideration in a hearing assuming that 6 an interested party raises an admissible contention 7thereof. To do otherwise would exclude critical 8 safety questions from licensing hearings merely on the 9 basis of an exemption label.

10 That's exactly what's occurred here.

11 Entergy is seeking to remove scrutiny by this State 12 and by the Board of critical safety questions 13 contained in the exemption request simply by labeling 14 it an exemption.

15JUDGE WARDWELL: Yes, but does not 16 contention two still need to meet the admissibility 17 criteria? And if, in fact, it hinges on challenging 18 the exemption, if that exemption has been ruled by the 19 Commission to be valid, then isn't that grounds for 20 dismissing that contention?

21MR. KISICKI: It would be if the 22 contention itself was grounded on the exemption 23 request.24JUDGE WARDWELL: Right, that's all I'm 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19saying. Under that scenario, you agree that it would 1 be, correct?

2 So, what we're left with is your abilities 3 to demonstrate that, in fact, you have other things in 4 contention to that are not related to those exemptions 5 in order to make that admissible, is not that correct 6 under the premise of where we're moving forward on 7 this argument today?

8MR. KISICKI: Correct. And I think, again 9--10 JUDGE WARDWELL: Do you agree with that?

11MR. KISICKI: Yes, I would insofar that 12 fundamentally, the State is seeking to have the Board 13 consider the exemption request.

14 More to the point, NRC precedent indicates 15 that we have a right of the exemption request.

16 It's hard to align, but I agree with you, 17 but it's hard to separate that out.

18CHAIR RYERSON: Mr. Kisicki, this is Judge 19 Ryerson.20 If I understand the Private Fuel Storage 21 case --22 MR. KISICKI: It's quite all right.

23 CHAIR RYERSON: Let me -- all right.

24 There are two things that distinguish that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 20 case I think.

1 One is that the Commission had not 2approved the exemption. I mean we have a more, maybe 3 it's an unusual situation, I'm not sure exactly in 4 what circumstances the Commission must approve an 5exemption. In some circumstances, the staff is 6 authorized to grant an exemption without explicit 7 Commission approval.

8 Here we have Commission approval and also, 9 the actual facts in Private Fuel Storage are kind of 10very favorable to the petitioner, frankly. I mean in 11 that instance, there was an ongoing adjudication in 12 front of a Licensing Board.

13 The applicant's compliance with a 14 particular regulation was being challenged by the 15 petitioner and the staff said, well, we'll handle 16that. We'll just grant an exemption from the 17 regulation, end of story.

18 And the Commission unanimously said no, 19you can't do that. That's really not fair. That just 20 totally undercuts the whole adjudicatory process.

21 Now the ruling may go beyond that 22particular circumstance but it's not clear to me 23 exactly where it does go, but it seems to me that, as 24 a practical matter, when the Commission approves an 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 21 exemption and the Commission has the opportunity to 1 reconsider its approval of that exemption, then, you 2 know, is the Licensing Board supposed to be rethinking 3 what the Commission does as far as the exemption goes?

4It seems a little backwards to me. What's your 5 response to that?

6MR. KISICKI: Well, the Board shouldn't be 7 reading much into the Commission's granting an 8 exemption because the Commission showed that there waw 9 little process behind their granting of it.

10 And this Motion for Reconsideration 11 outlines the Commission failed to, you know, engage in 12 a NEPA review as required under Federal law.

13 And, you know, the fact that an exemption 14 hasn't been issued by the NRC staff at this point is 15 evidence that it means the staff is considering the 16 things laid issues in front of the Commission that 17 have merit with respect to the exemption request.

18CHAIR RYERSON: Mr. Kisicki, Judge Ryerson 19 again.20 You have, in fact, made these same 21 arguments to the Commission which is currently 22 presumably considering them, is that not correct?

23 MR. KISICKI: Correct.

24 CHAIR RYERSON: Yes, and -- okay.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 22 Well, we've gone on for almost half an 1hour, do you have anything further at this point? We 2 may give you an opportunity at the end to say another 3 word or two, Mr. Kisicki.

4MR. KISICKI: I appreciate that and I 5 think I am okay for now.

6 CHAIR RYERSON: Okay.

7 MR. KISICKI: Thank you.

8 CHAIR RYERSON: Thank you.

9 Let's turn next to Entergy. Mr. Kuyler, 10 do you want to comment?

11 MR. KUYLER: Yes, thank you, Your Honor.

12 Before I get started, I should also 13 mention we have a couple of technical folks from 14 Entergy in the room with me as well, like the NRC 15 staff.16 In terms of commenting on the discussion 17 so far, I would like to point out that, you know, 18 under the Notice of Opportunity for Hearing and under 19 the regulations, the issue presented to the Board is 20 whether the proposed decommissioning emergency plan 21 and the AL scheme are adequate under the regulations 22 as exempted.

23 And that includes questions like, you 24 know, does the License Amendment Request provide for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 23 adequate equipment, facilities, organizational 1 staffing, whether actions to mitigate consequences are 2 identified, whether there are periodic drills and 3 exercises for on site emergency planning, et cetera.

4 And I think we've briefed this in our answer.

5So, contrary to what the State says on 6 page two of its reply, it's not that there's nothing 7 left for the NRC or the Board to consider in this 8 proceeding, there is quite a bit of substance that 9could be challenged. But the State hasn't challenged 10 any of those things.

11 Almost the entirety of contention two, as 12 far as we can tell, challenges the exemption request 13 and not the License Amendment Request.

14 Even the statement of the contention 15 itself is that the exemption request and License 16 Amendment Request taken together are not a challenge 17 to the LAR alone.

18 So, when the State says that Entergy's 19 License Amendment Request, if approved along with the 20 predicate requested exemption fails to meet the 21 regulations.

22 So, our understanding is that the NRC will 23 not issue the exemption until it is satisfied that the 24requirements that Commission has set forth in its 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 24 precedent are met and that includes the various action 1 analyses that go into it.

2 So, all of the questions of whether spent 3 fuel accident evaluations are adequate, they need to 4 be shown to be adequate before the exemption is 5granted. So, those are issues for the exemption 6 request, not the License Amendment Request.

7 And I think, you know, when we get to the 8 question that the Board asked this morning, I think 9 the State has effectively conceded this fundamental 10 issue.11 On page nine of its original petition the 12 State says the LAR meets the requirements of Section 13 50.54(q)(4) only in the event Entergy is exempted from 14 material requirements of Part 50 Appendix E.

15 So, our --

16CHAIR RYERSON: Mr. Kuyler, Judge Ryerson 17 here.18 I sort of agree with you, they probably 19 meant to say if at all only if, but I think we're --

20 well, I see you make a point and we've noticed that as 21well. But that's clearly, at least in my view, not 22 the same thing they're saying at page seven of their 23 reply brief.

24 So, I would not be inclined to estop them 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 25 from the argument on page seven of the reply brief by 1 th reason of this statement on page nine of the 2 petition.3But I do want to ask you to a little 4 directly address, you know, the argument that the 5 State has made that, put aside the exemption, as you 6 say the question, if we put aside the exemptions and 7 assume that the Commission will reaffirm, assume for 8 purposes of argument that the Commission totally 9 reaffirms the granting of those exemptions, then as 10 you say, the Board's job is to look at whether the 11 License Amendment complies with the NRC regulations as 12 exempted.13 But that's Mr. Kisicki's argument on page 14 seven of the reply is that even if those exemptions 15 are, in effect, affirmed, there is still a violation 16 or a potential violation has been adequately made out 17 that 50.54(q)(4), I think is the cite, is not 18 satisfied.

19 And, you know, we have three declarations 20 from people who have certainly certain qualifications.

21 We have the representation of counsel that they would, 22 in fact, sign an affidavit to the effect of their 23 statements.

24 And so, what's your response to that? I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26 mean are those -- is there a much more slender 1 admissible contention here in contention two even 2 putting aside the exemptions?

3 MR. KUYLER: Well, just to preface this, 4 as I mentioned, Your Honor, the statement of the 5 contention itself ties the two things together. So, 6 we would have to hunt t hrough the bases for the 7 contention to try to glean out something that is a 8 challenge to the License Amendment Request and not the 9exemption request. And I don't think that Mr. Kisicki 10 has identified anything of that nature in this 11 morning.12You know, we did brief some of this 13information in our answer starting at page 25. There 14 are statements in the expert declarations in certain 15 areas that do raise issues related to the LAR.

16 For example, the State claims that Entergy 17 must comply with all the requirements of Part 50 18Appendix E in order for NRC to approve the LAR. And, 19 again, I think we've pointed out that that's actually 20 a challenge to the exemption request which must be 21 granted before the License Amendment Request is 22 granted.23 There are also some of the statements of 24 Ms. Bornamin (phonetic) ***9:33:28*** talking about 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27 implementing procedures that the State has not had the 1 opportunity to look at implementing procedures.

2 They've identified no regulatory 3 requirement that those implementing procedures be 4 presented as part of the License Amendment Request 5review. So, we don't think that raises a material 6 issue or a genuine dispute.

7 There are certain statements by Mr.

8 Leshinskie that, you know, for example, the License 9 Amendment Request should reflect the arrangements 10 between Entergy and Vermont regarding emergency 11 notifications.

12 But they haven't identified any deficiency 13 in the application in that regard. The application, 14 as we pointed out, describes the communication 15 channels, et cetera and so they haven't raised a 16 material issue or any admissible issue with adequate 17 expert opinion support that identifies those portions 18 of the application that they are actually disputing.

19 JUDGE WARDWELL: Yes, Judge Wardwell.

20 I'd like to go back to page seven of 21 Vermont's reply where they mentioned those additional 22 accident scenarios.

23 To what degree were those accident 24 scenarios evaluated as part of the exemption requests, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28 Mr. Kuyler?

1MR. KUYLER: Your Honor, there was a short 2 discussion of some of those scenarios in the cover 3 information for the exemption request as background 4 information.

5 But the fundamental question of the 6 adequacy of the accident analysis must be evaluated by 7 the NRC staff and found to be acceptable before they 8 can relax the off site emergency planning requirements 9 in the exemption request.

10JUDGE WARDWELL: Where is that codified or 11 stipulated either in rules or in directions associated 12 with the exemption itself? Is it worded that way in 13 the exemption or is there a regulation that requires 14 that or what would be the basis?

15MR. KUYLER: I don't think there's a 16single regulation that says that. But certainly in 17 SECY-14-0125 in general, in order for the staff to 18exempt Entergy from the requirements for off site 19 emergency planning that are in the regulations, they 20 have -- I guess the regulatory requirement would be 21 50.12. They have to find that the public health and 22 safety are still adequately protected, et cetera.

23 And so, the NRC cannot grant the 24 exemptions until they find the accident analyses 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 29 adequate.1 CHAIR RYERSON: Any other questions from 2 other Board Members for Mr. Kuyler?

3 JUDGE KENNEDY: I have nothing.

4 CHAIR RYERSON: Judge Wardwell?

5 JUDGE WARDWELL: I'm fine.

6CHAIR RYERSON: All right, thank you, Mr.

7 Kuyler.8Let's turn -- will it be Ms. Young? Will 9 you be speaking for the staff?

10 MS. YOUNG: Yes, I will.

11CHAIR RYERSON: If you would like to 12 address the same issue that we've been talking about, 13 we would appreciate it.

14MS. YOUNG: Well, the staff generally 15 agrees with statements by Entergy in terms of the 16 scope of the contention which, at bottom, challenges 17 whether the exemption was adequate.

18 I note for the Board, in the SECY paper 19 that has the chart address which regulatory provisions 20 would not be no longer imposed on Entergy.

21 For example, Appendix E Section 4.1, the 22 requirement to have planning associated with hostile 23 action would be removed.

24 There was an analysis in terms of the time 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30 it would take adiabatic heating in the beyond design 1 basis accident situation for to occur, the ten hour 2 period that's reflected in draft staff guidance that 3 Entergy relied on to submit its exemption request.

4 That's referred to on page two of the enclosure.

5 So, basically, there were analyses that 6 considered what the credible beyond design basis 7accidents were. The License Amendment Application 8 also referenced, I believe, the fuel handling accident 9analysis previously done by Entergy that was the 10 subject of another amendment. And the staff pointed 11 that out in its pleading. The page number I'll have 12 to get for you later, yes, probably around page 34 of 13 its pleading.

14 So, basically, you have a contention which 15 challenges the system of the exemption and the 16 amendment proposed by Entergy basically seeks to 17 implement the exemptions when granted and would revise 18 in terms of any delta between what was approved in the 19 exemption and what's requested in the License 20 Amendment would advise the initiating condition for 21 emergency -- only to remaining emergency action levels 22 which are notification of unusual event and alert.

23 And when looking at the contention, the 24 information provided by the State of Vermont, however, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31 their focus is so squarely on the adequacy of the 1 exemption and analyses that support the wisdom of the 2 exemption, that they have very little information, if 3 any, that challenges those specific changes that go 4 beyond the parameters of the exemption itself.

5CHAIR RYERSON: Okay. Thank you, Ms.

6 Young.7 Board Members, any questions for the 8 staff?9JUDGE KENNEDY: This is Judge Kennedy. I 10 have nothing to add.

11 CHAIR RYERSON: Thank you.

12 JUDGE WARDWELL: I have nothing.

13 CHAIR RYERSON: All right. Mr. Kisicki, 14 I think I promised you the last word, if you want it.

15 I do think we pretty much understand the issues.

16 I'll, you know, give you a minute or two if there's 17 anything you would like to wrap up with.

18 MR. KISICKI: Thank you, I would.

19 This issue that surrounds the LAR in front 20 of the Board right now is of vital importance to the 21 citizens in Vermont.

22 Of all of the issues that the State has 23 been keeping tabs on with respect to the citizens, 24 particularly those near the plant, a reduction in the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 32 emergency planning zone is one of -- is very 1 significant to those people.

2 At this point, the State is putting 3 forward a contention as best it can because it seeks 4-- it has raised concerns regarding the adequacy of 5 the LAR and to the extent that the LAR is related to 6 an exemption request.

7 What we're seeking is a hearing to discuss 8 those concerns and have this Board make a 9 determination with respect to those concerns on the 10 merits, and that's very important.

11 Now, the fact that the NRC staff and the 12 Board is asking questions about what's contained in 13 the exemption request shows two things.

14 One, it disadvantages the State because 15 there has been no processes that are forwarded to the 16 State with respect to the exemption request.

17 And, two, it shows that the LAR is linked 18 to the exemption request triggering a hearing right 19 and justified a hearing on both the exemption request 20 and the LAR.

21If we look to the Private Fuel Storage 22 Tank, and Judge Ryerson, I know that you've posited 23 that it is distinguishable, I would have to 24 respectfully disagree.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 33 First off, the analysis that Private Fuel 1 Storage laid out regarding what the basis for 2 triggering a hearing right doesn't revolve around sort 3 of the procedural mechanics in where the case was 4procedurally. It is clearly focused on one issue and 5 one issue alone, that is whether or not a License 6 Amendment Request is predicated on or linked to an 7 exemption request.

8 And it goes on to state that trying to use 9 an exemption request and sort of packing in analysis 10 with respect to safety concerns may cue an exemption 11request and not an LAR is just a way to try to 12 circumvent a process with respect to the LAR.

13 That's what's going on in this case and 14 that's the discussion that the NRC staff having with 15 this.16 But finally, the last thing I would state 17 is there is -- the State has raised a concern with 18 respect to the exemption request and that is that the 19 essentially the Commission failed to engaged in a NEPA 20 analysis as required under Federal law. And that is 21a substantive issue with respect to the exemption 22 request.23 But what that means is at this point, the 24 Board is in a position where it is not able to grant 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 34 a License Amendment Request because the Commission 1 hasn't made a final determination as to the status of 2 the exemption request.

3 The LAR, therefore, is in violation of the 4regulatory scheme as currently put forward. And until 5 there is some process that is put forward with respect 6 to the exemption request or the Commission makes clear 7 what its thinking on the exemption request, a 8 discussion of contention two on the LAR in general is 9 not ripe for review.

10 Thank you.

11CHAIR RYERSON: Okay, thank you, Mr.

12 Kisicki.13 Again, Board Members, any further 14 questions?

15Okay, all right. Well, that really 16 concludes what we intended to cover today.

17 Our job, the Board's job now is to take 18 the information we have received both this morning and 19 in your written pleadings and reach a decision.

20 The Commission gives us some guidance on 21when that should be done. Essentially, no later than 22 45 days from today which I think is May 26th or issue 23a Notice if we need more time. I don't think we will 24 need more time than that.

25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 35 I don't know if anyone wishes to speculate 1 as to the likelihood that the Commission will act on 2 the petition in front of it before them, but we'll 3 have to, obviously, if that were to occur, we would 4take that into account. Otherwise, we will just have 5 to proceed as best we see fit.

6 On behalf of the Board, I'd like to thank 7all the counsel today for your presentations. You 8 gave very helpful and direct responses to the 9 questions that we have.

10 And, again, we are familiar with the 11briefs. These were simply the questions that we 12 thought it would be helpful to have some oral argument 13 on.14 We're certainly going to consider the full 15 range of your arguments as presented in your brief.

16 Any questions or comments from Judge 17 Wardwell? Judge Kennedy?

18JUDGE KENNEDY: Judge Kennedy has nothing.

19 JUDGE WARDWELL: I have nothing more.

20CHAIR RYERSON: Okay. Well, thank you 21 again and we stand adjourned.

22 (Whereupon, the above-ent itled matter went 23 off the record at 9:45 a.m.)

24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433